Notes for addresses by Eugene
Oscapella*, LL.M., of the
Ontario Bar
to the
Society for the Reform of Criminal Law Conference 100 Years of Criminal Codes
Ottawa, June 30, 1993

5th International Conference on the Reduction of Drug Related
Harm
Toronto, Ontario, March 7, 1994

(paper updated as of March 2,
1996)

Persons using this narcotic
[marijuana] smoke the
dried leaves of the plant, which has the effect of
driving them completely insane. The addict loses all
sense of moral responsibility. Addicts to this drug,
while under its influence, are immune to pain, and
could be severely injured without having any
realization of their condition. While in this
condition they become raving maniacs, and are
liable to kill or indulge in any form of violence to
other persons, using the most savage methods of
cruelty without, as said before, any sense of moral
responsibility.

Edmonton magistrate Emily Murphy, in
1922, in The Black
Candle, one year before cannabis was added to the
Schedule of
the Opium and Narcotic Control Act>

To legalize or not to legalize?
That . . . is not really
the right question. The appropriate question is
much broader, and it is one that incorporates the
"legalize or not" question with respect to particular
psychoactive drug products: What, simply stated,
are the best means to regulate the production,
distribution, and consumption of the great variety of
psychoactive substances available today and in the
foreseeable future?

Ethan A. Nadelmann, "Thinking Seriously
About Alternatives to
Prohibition", (1992) 121 Journal of the American
Academy of
Arts and Sciences 85 at 86.

Text of paper:

I am not a person who wishes to antagonize or
insult a distinguished audience. I
prefer diplomacy. But I also hold passionate beliefs in the
justice of certain causes --
an end to the prohibition of drugs being one of them. What I
will say may initially
offend many of you, but that is a small price to pay if it spurs
you to rethink an
important social issue.

I also want to make it clear that I am not criticizing those who
believe that they are
working in Canada's best interests by pursuing Canada's current
prohibitionist drug
policies. I am simply asking them to open their eyes a bit
wider. I am criticizing,
and criticizing harshly, those who make mileage out of a failed
drug policy because
it benefits their personal purposes -- political, financial,
moral or bureaucratic.

The simple thesis of my presentation is that our drug laws --
the laws prohibiting the
possession, sale and distribution of certain psychoactive
substances -- are the greatest
shame of 20th century criminal justice. They represent an
utterly inappropriate
application of the criminal law. They cause far more harm than
they prevent. They
are witch hunts; they are a pharmacological pogrom; they are
chemical McCarthyism.
The criminal law of the future will be ill-served by their
continued existence.

Drug prohibition started formally in Canada with Mackenzie
King's 1908 Opium Act.
The decades that followed have seen a pattern of increasingly
repressive and
irrational measures that have done little to stop the use of the
targetted drugs. What
they have done is to further the profitability and violence
associated with the drug
trade and the misunderstanding about the effects of drug
consumption.These same
measures have also forced those unfortunate enough to have
chosen the "wrong" drug
-- marijuana, heroin or cocaine, instead of alcohol, nicotine or
prescription drugs -- to
be stigmatized, alienated and prosecuted. They have curtailed
civil liberties, not just
of drug users, but of all Canadians.(1)

Instead of showing the tolerance of which democratic societies
boast, Canada has
turned hundreds of thousands of otherwise law-abiding citizens
into criminals and
thrown many of them into prison for their involvement with
drugs. In 1989/90
alone, 3,137 people were sentenced to incarceration in Ontario
institutions for drug
offences. In the three years leading up to 1990, the percentage
of incarcerations
accounted for by drug crimes in Ontario rose from four to seven
per cent. Federally,
the proportion of inmates admitted under the Narcotic Control
Act grew from nine to
14 per cent between 1986 and 1990.(2) Among the many other
flaws of prohibition,
throwing people into prisons represents an economic folly that a
besieged Canadian
economy cannot afford.(3)

Prohibition has encouraged marketers to sell and users to use
more potent forms of
drugs or more dangerous methods of ingestion. Users have no
guarantee of quality.
As a result, some -- especially the young and inexperienced --
will die and others
will be maimed. The story of U.S. alcohol prohibition in the
1920's (and similar
attempts to limit vodka availability in the Soviet Union in the
mid-1980s) is being
repeated, only this time with adulterated drugs or drugs of
unknown potency.(4)

Instead of looking for policies that might minimize the harm
flowing from the use of
all psychoactive substances, Canada has arbitrarily created a
black market for some.
In so doing, it has poured billions of dollars into the hands of
those willing to milk
the prohibition cow and to use violence to do so. And Canada's
active support for
prohibition is destabilizing both developing countries and the
fragile states emerging
from the former Soviet Union and Eastern Bloc.

Beyond all this, our attitude towards "evil" drugs has
encouraged a dangerous
inattention to the calamity of HIV infection and drug use. More
than 30 per cent of
HIV infections in the United States result from injecting drugs.
The percentage is
increasing at an alarming rate in Canada. Globally, injection
drug use is one of the
major sources of new HIV infection.

Threats of prosecution for running needle exchange programs
eventually waned in
Canada, but how many users became infected with HIV while our
policy makers and
politicians dithered? And, even with needle exchange programs,
addicts who inject
drugs are afraid to carry evidence of their habit with them.
They forsake their own
needles and drugs for the short term relative safety of the
shooting gallery. In the
gallery, they may share dirty needles and infect themselves --
and ultimately others
who do not use drugs -- with the HIV.

What about prisoners? First, we sentence drug users to prison,
then we do not give
them the means to prevent HIV infection from the massive levels
of drug use in
prisons. Not until recently did we make condoms available to
prisoners, in part out
of fear that condoms would be used to hide drugs. Better to
preserve the moral fibre
of our prisons than to protect the lives of human beings.
Still, despite finally
acknowledging that drug use in prisons is widespread, we have
largely refused to
help prisoners with needle exchanges or cleaning solutions that
will help prevent the
further transmission of AIDS in prisons.

Society cared little about HIV infection among drug users and
prisoners, because it
had been taught to care little for drug users and prisoners
themselves. Later, when
AIDS struck the partners of such people, it still did not raise
great concern, for these
were obviously people cut from the same cloth. Now it is
beginning to strike people
further afield -- people far removed from prisons and the drug
using community --
perhaps the sons and daughters, nieces and nephews of
"respectable" Canadians.
How much misery we could have avoided if only we had treated
drug addicts and
prisoners with some compassion instead of indifference or
prohibitionist repression.
How much misery and death we could have avoided in the future.

In short, it is hard to imagine policies better suited to
generating and
perpetuating violence, corruption, organized crime, needless
death, misery and
social dysfunction than the prohibitionist schemes that Canada's
policy makers
and Parliamentarians have concocted over the last 85 years. If
the lives and
liberties of Canadians did not hang in the balance, this would
be a farce. Instead, it
has become a tragedy.

The Economist, the widely respected British current
affairs
publication, has strongly,
and often, criticized the continuing blind reliance on
prohibition in Western countries.
For years, its message has been to legalize, control and
discourage drugs. George
Shultz, former Secretary of State under U.S. president Reagan
and former Secretary
of the Treasury under president Nixon, has called for an
examination of forms of
controlled legalization of drugs. Milton Friedman, Nobel
laureate in economics,
called for the decriminalization of drugs, claiming that the
path of more police, more
jails and a whole panoply of repressive measures can only make a
bad situation
worse.

The Washington-based Drug Policy Foundation has chronicled and
condemned the
floundering machinations of American prohibitionist policies for
years. The
Religious Coalition for a Moral Drug Policy, based in the U.S.,
is equally blunt. The
primary moral obligation of government, it asserts, is to secure
liberty, not to
promote "virtue at the point of a gun".

Mr. Justice Michael Kirby of the Court of Appeal of New South
Wales remarked
recently that drug prohibition has scarred nations around the
world.(5) Two prominent
New York City Federal judges announced in April 1993 that they
would no longer
preside over drug cases, "going public with a protest that calls
attention to what
dozens of Federal judges are doing quietly across the
country".(6) Both were
protesting the futility of applying the criminal law. Said
Robert W. Sweet, a Federal
judge in Manhattan, who began speaking in favour of legalization
four years ago:

[Using the criminal law] is a policy that is not
working. It's not cutting down
drug use. The best way to do this is through education and
treatment.(7)

Several respected Canadian criminologists, lawyers,
psychologists and drug policy
researchers have called either for an end to prohibition, or at
least an honest
evaluation of its harms. These include the late Professor
Chester N. Mitchell, Dr.
Patricia Erickson, Dr. Diane Riley, Dr. Eric Single, Mr. Jan
Skirrow, Professors Line
Beauchesne, Neil Boyd, Bruce Alexander, Patrick Fitzgerald,
Marie-Andr‚e Bertrand,
Robert Solomon and Mr. Glenn Gilmour.(8)

Some of the most progressive literature in the Western world on
alternatives to
prohibition originates in Canada. Before its unfortunate
demise, the Law Reform
Commission of Canada had set up a drug policy group to look at
the application of
the criminal law to drugs issues. The "drug policy group" was
in the throes of
preparing a working paper on the topic when the plug was pulled
on the
Commission. The thrust of the working paper and the broad
consensus of the group
to that point was that applying the criminal law to the control
of drugs created
serious harms.(9)

Yet pleas for a rethinking of Canada's outmoded drug policies,
and those of other
countries, have encountered walls of silence, contempt and
hostility. This is so even
within governments that preach restraint in the use of the
criminal law.

The Government of Canada's 1982 statement of principles, The
Criminal Law in
Canadian Society, maintained that the criminal law should be
employed to deal only
with that conduct for which other means of social control are
inadequate or
inappropriate. Nice words, but no reflection of reality.
Instead, the criminal law has
become the instrument of first resort in dealing with drugs.
Ignoring the restraint
that our official policy proclaims, our drug laws manifest
excess. Instead of
compassion and tolerance, our drug laws signal insensitivity to
the human condition.
Instead of justice, they preach oppression.

And still, they do not stop the flow of drugs into Canada. The
vast bulk -- perhaps
more than 90% -- of the illegal drugs destined for Canada manage
to get past our
borders. And Canada is not alone in this failure to stem the
influx of drugs by using
the criminal law. The United States, the most powerful nation
on earth, and with
some of the most repressive drug laws in the world, scores
little, if any, better.

The RCMP National Drug Intelligence Estimate 1990
reported that
more cocaine was
available in Canada in 1989/90 than ever before. Regions that
had been relatively
untouched by cocaine were reporting wide availability, and
prices in many centres
had dropped considerably.(10) The same report spoke of the
increasing availability of
heroin in Montreal(11) and the active heroin markets in Toronto
and Vancouver.
Cannabis remains widely available in Canada. It is imported
from a host of
countries, and Canada is becoming an increasingly important
producer of marijuana
itself. Home-grown marijuana has become a major agricultural
commodity.(12)
Perhaps the most telling message of the futility of trying to
control the marijuana
market through the criminal law comes from the RCMP itself in
what could be an
advertisement for a marijuana franchise operation:

A hydroponic growing operation of a few hundred
plants requires only basic
horticultural knowledge and a minimal investment to set up,
yet it can
generate thousands of dollars in revenues.(13)

What these stories and messages point to is the utter
inability
of prohibition to stem
the flow of drugs.

Some people call it a surrender to abandon the use of the
criminal law against drugs.
It is no more a surrender than failing to prohibit eggs means a
surrender to
cholesterol. We don't need to make everything we disapprove of
into a criminal
offence.

Ending prohibition makes common sense. It means that instead of
propping up an
enormously profitable black market in drugs, and pushing drug
users to the margins
of society, governments could focus on productive means of
trying to control the
harmful use of substances, be they alcohol, tobacco, marijuana,
heroin or cocaine. It
means that they could turn away from soul-destroying prisons
towards
understanding drug use as a natural, not deviant, part of human
behaviour.

Moving away from prohibition also means that governments could
turn off the
propaganda machine that has inhibited free expression on the
drugs issue. For
decades, this machine has spewed forth on the "evil" of some
drugs while largely
ignoring others. Even lawyers and judges have not been immune
from falling into
the propaganda trap.(14)

Governments have needed such propaganda to justify increasingly
repressive laws
and to maintain public support for applying these desperate
measures. In place of
this propaganda machine, Canada needs an honest dialogue about
the harms (and in
some cases benefits) of all drugs, not just those that have been
arbitrarily villified by
policy makers, moral entrepreneurs and vote-hungry politicians.
We must start to
talk openly and honestly about drugs and about alternatives to
prohibition, even if it
is "administratively" easier to accept the status quo.

And why do we continue to parrot American "solutions"? The
United States
represents the most glaring failure of prohibitionist drug
policy in the world. Blood
runs in the gutters of too many American cities, largely because
of the violent trade
in drugs spawned by prohibition. Washington D.C., the capital
of the most powerful
nation on earth, has one of the highest murder rates in the
world. Between 1988 and
1991, the years of the Bush war on drugs, the murder rate in
Washington increased
by 32 per cent -- from 369 in 1988 to 489 in 1991.(15) A
significant portion of those
murders over those four years -- varying between 30 and 50 per
cent -- have been
related to the illicit trade fostered by prohibition.(16)

U.S. prisons are overflowing with convicted drug offenders. And
despite massive
infusions of law, money and rhetoric, particularly over the past
several years, drugs
remain widely available and many drug prices have remained
constant or fallen.(17)

Yet Canada wants to apply many of the same failed policies and
laws. Do we
persist because we are basically an authoritarian society that
tries to repress with the
sledgehammer of the criminal law conduct that society's ruling
groups do not like?
Or have we been so wildly misled about "good" and "bad" drugs
that even our
leaders cannot apply logical thought to drug policy? Perhaps we
persist with
prohibition simply because our legislators and policy makers,
like their targets, have
become addicted -- only, in this case, to the criminal law.

Canada needs a dramatic change in the direction of its drug
policy. Canada's Drug
Strategy preaches the rhetoric of a more moderate approach. But
we are doing more
of the same. Bill C-85, the Psychoactive Substance Control
Act
before Parliament in
the Spring of 1993, represented yet another capitulation to
prohibition. (Bill C-85 died on the Order Paper when the federal
election was called in 1993. However, the Liberal government
introduced a virtually identical bill, Bill C-7, the
Controlled
Drugs and Substances Act, on February 2, 1994. On October
30,
1995, the Bill was passed by the House of Commons and sent to
Canada's Senate for approval (and further hearings). Bill C-7
ultimately died before it was enacted when the government ended
the current session of Parliament on February 2, 1996. On March
1, the government announced its intention to reintroduce Bill C-7
(likely with another bill number, but identical in form.)
Legislation like Bill C-7 will bring
more unnecessary
use of
the criminal law,
more penalties, more oppression, more violence and more death.
Why are we doing
this to ourselves?)

I hope that historians from the next century will remember the
20th century as the
century that proved the failure of prohibition. I hope that,
early on in the next
millennium, we will be able to look back at prohibition and
shake our heads in
wonder. And as we shake our heads, perhaps we will ask how we
allowed ourselves
to succumb so blindly to the chemical McCarthyism of the 20th
century.

Other Voices

The remainder of this paper relies on the eloquent words of
others challenging
prohibition, both in Canada and elsewhere. Some of these voices
are the voices of
radicals. Some are the voices of moderates. Surprisingly, at
least initially, some are
the voices of conservatives.

Canadian Voices

Much of the writing about the failure of prohibition has
come from the United States.
This is likely because prohibition has done such profound damage
to American
society (although certainly not as profound as the damage to
countries like Colombia,
Peru and Bolivia). However, some of the most progressive
writing has emerged from
Canadian authors.

The late Professor Chester N. Mitchell, in his 1990 text, The
Drug Solution,
summarized the case against current prohibitionist drug policies
of many countries as
follows:

2. prohibition fails to eradicate the importation or
domestic production of
illicit drugs but perversely succeeds in shifting users to
more potent forms of
a drug or to more dangerous methods of ingestion;

3. efforts to eliminate illicit drugs "at the source" in
Third World countries are
futile, expensive and destructive;

5. drug law enforcement relies on informants, entrapment,
and undercover
agents and creates a warlike atmosphere conducive to the
abuse of human
rights;

6. current drug laws ignore constitutional guarantees of
equality;

7. current drug laws are elitist and undemocratic because
they minimize voter
input and reject citizen autonomy while granting
unjustified drug control
monopolies to police and physicians;

8. ending prohibition would destroy black markets, unclog
prisons and courts,
decriminalize millions of citizens, better protect
youngsters and restore a good
deal of tolerance and civility to society.(18)

In his conclusion, Mitchell states:

When will the drug wars end? Unlike military
campaigns, internal wars of
persecution are notoriously long-lived. Past wars against
witches, Jews,
Moslems, Christian martyrs and other scapegoats often
lasted for centuries,
and the drug war may be no exception. The drug battle
lines were drawn up
years before the 1917 Communist revolution in Russia, and
when the first
people to walk on Mars return to Earth sometime in the 21st
century, they
will probably be greeted be newspaper headlines announcing
the familiar,
depressing catalogues of drug busts, corruption scandals
and violent deaths of
inner-city youths killed in drug turf battles. For now,
compromise seems
impossible because governments keep demanding the
unconditional surrender
of all drug offenders. But possessing no organization,
army or headquarters,
drug offenders cannot surrender en masse. Strictly
speaking, they cannot be
warred against; they can only be persecuted.

As modern people we like to flatter ourselves that the
problems we face are
entirely new. None have passed this way before, so why
look for historical
parallels? Canada's Supreme Court held in Hauser (1979)
that "narcotics"
were a genuinely new matter, like aviation or
telecommunications. The
alleged novelty of our problems explains our failure to
solve them, and it also
rationalizes a reliance on technological fixes, like
herbicides, wire-tapping and
helicopter surveillance when, at heart, the drug crisis is
a replay of the ancient
battle between faith and science, between the haves and the
have-nots,
between the judges and the judged.

That modern drug myths repeat the time-worn divisions of
blessed and cursed
is apparent from the way the healing properties of medical
psychoactives and
the destructive properties of illicit narcotics are equally
exaggerated in
opposite directions. Once it was "God's Own Medicine", now
heroin is
reviled as a godless curse. Without good evidence, most
people accept these
exaggerations and lies because they are enshrined in law
and re-inforced daily
in the mass media. But ours is still a relatively
sceptical age, and the weight
of the pulpit, court and public opinion has failed to
prevent certain
psychologists, economists, anthropologists, lawyers,
physicians, sociologists
and other researchers from investigating drug issues and
questioning official
claims. Such investigation continues to grow and broaden,
and a rough
consensus has begun to emerge on a number of important
points.. . . At some
juncture, the research results will be powerful enough to
undermine the drug
myths. The vitality and freedom of science must therefore
be maintained and,
wherever possible, law reforms should concentrate on
creating
decision-making systems that allow a full and fair
consideration of the
evidence. We do not yet know enough to provide complete or
totally
adequate answers about drug regulation, but we do know how
to find those
answers.(19)

Psychologist Bruce Alexander of Simon Fraser University
speaks of the impact of
decades of drug propaganda:

In the case of the War on Drugs, the impact of
decades of propaganda is such
that it is impossible to discuss psycho-active substances
like heroin, LSD,
cocaine, and airplane glue as anything but 'fathomless
evils.' A plan to treat
them in a normal way, allowing a reasonable amount of use
under reasonable
conditions, and providing regulations to control dangerous
use, would seem
defeatist, or treasonous. Yet, use of these substances is
not more dangerous,
unhealthy, or addictive than countless other practices that
Canadians
engage in such as driving motorcycles or automobiles,
skiing, smoking
cigarettes, white-water rafting, playing hockey, playing
poker, or eating
chocolate. In each of these cases, and in the case of the
feared drugs,
most people use these practices in a constructive way, but
a few people
use them in such extreme and hazardous ways that their
health is
affected. In the most extreme cases, some people lose
their lives.(20)

. . .

The biggest cost of the drug war propaganda may be the
systematic reduction
about people's ability to think intelligently about drugs.
Society faces
genuinely terrifying, immensely complex problems in the
last decade of the
twentieth century. The environment, educational
institutions, value systems,
health institutions, and economy all need urgent attention.
But the obsessive
concern with drug problems stirred up by incessant
propaganda distracts us
from these to the point of collective
stupidity.(21)

Criminologist Neil Boyd of Simon Fraser University
states:

When we take drugs we do so to alter ordinary waking
consciousness. The
criminal control of a citizen's desire to alter
consciousness is unnecessary.
We have other at least equally useful and less punitive
methods available for
control: taxation, prescription and prohibition of public
consumption.

But most important, we should confront our own hypocrisy.
We can no
longer afford the illusion that the alcohol drinkers and
tobacco smokers of
Canada are engaging in methods of consciousness alteration
that are more
safe or socially desirable than the sniffing of cocaine,
the smoking or drinking
of opiates, or the smoking of marijuana. The answer is not
to usher in a new
wave of prohibitionist sentiment against all drugs, nor is
the answer to allow
the free-market promotion of any psychoactive. The middle
ground is
carefully regulated access to drugs by consenting adults,
with no advertising,
fully informed consumers, and taxation based on the extent
and harm
produced by use. There is a need for tolerance, for both
tobacco and heroin
addicts. And there is a need for control of the settings
and social
circumstances of drug use. There are no good or bad,
drugs, though some are
more toxic, some are more likely to produce dependence, and
some are very
difficult to use without significant risks.

. . .

The task is to dismantle the costly and violent criminal
apparatus that we
have built around drug use and distribution, mindful that
our overriding
concern should be public health, not the self-interested
morality of Western
industrial culture.(22)

Patricia Erickson, Senior Scientist at Ontario's Addiction
Research Foundation, has
written of the recent results of Canada's muddled approach to
drug policy:

The 1990 RCMP [Drug Intelligence Estimates] not only
documented falling
prices and greater purity of cocaine, but also projected
easier availability of
almost all illegal drugs in Canada in the next two years.
In this context, the
Solicitor General . . . remarked: "What we're saying is
that the war has not
been won yet but that we are making steady progress." One
can only wonder
what a "setback" would be.(23)

Erickson also refers to a statement made by a former
Canadian
prime minister:

Prime Minister Pierre Trudeau, in a session with
students in 1977, said: "If
you have a joint and you're smoking it for your private
pleasure, you
shouldn't be hassled."(24)

Many others have provided thoughtful analyses of the impact
of
prohibition. They
include Jan Skirrow, former Chief Executive Officer of the
Canadian Centre on
Substance Abuse, Dr. Diane Riley and Dr. Eric Single of the same
organization,
Professor Robert Solomon of the University of Western Ontario,
Professor Line
Beauchesne of the Department of Criminology at the University of
Ottawa, Professor
Marie-Andr‚e Bertrand of the University of Montreal. Many of
these were founding
members of the Canadian Foundation for Drug Policy.(25) The
McGill Centre for
Medicine, Ethics and Law is studying aspects of the harms
of prohibition. And the
authoritative study on the evolution of Canada's drug laws
is that by P.J. Giffen,
Shirley Endicott and Sylvia Lambert, Panic and
Indifference: The Politics of
Canada's Drug Laws.(26)

Voices from Other Countries

In September of 1989, The Economist, one of the
most
widely-respected current
affairs publications in the English language, spoke out:

Prohibition, and its inevitable failure, make a
bad business more criminal,
more profitable and more dangerous to its customers than it
need be. Lifting
the ban, and replacing it with detailed regulation, might
certainly expose more
people to risky experiments with drugs. That danger is
real -- even if
experience shows that relatively few people are foolish
enough to go beyond
experiments.

But prohibition's failure is more dangerous yet, both for
individual drug-takers
and for societies corrupted, subverted and terrorised by
the drug gangs. The
trade is banned by national laws and international
conventions. Repeal them,
replace them by control, taxation and discouragement.
Until that is done, the
slaughter in the United States, and the destruction in
Colombia, will continue.
Europe's turn is next.(27)

The Economist has not allowed this issue to rest. On
several
occasions, it has
reiterated its position. In May, 1993, it spoke out again in a
lead editorial:

The attitude of most electorates and governments is
to deplore the problems
that the illegal drug trade brings, view the whole matter
with distaste, and sit
on the status quo -- a policy of sweeping prohibition. Yet
the problems
cannot be ignored. The crime to which some addicts resort
to finance their
habits, and in which suppliers of illegal drugs habitually
engage, exacts its
price in victims' lives, not just money. The illegal trade
in drugs supports
organised crime the world over. It pulls drug-takers into
a world of filthy
needles, poisoned doses and pushers bent upon selling them
more addictive
and dangerous fixes.

Yet most people still balk at exploring ways in which a
legal regime might
undermine such effects. Their refusal owes something to a
distaste for
addiction in itself. This is an argument shot through with
inconsistency. The
strongest disapproval often comes from those who scream
about liberties if
their own particular indulgences -- for assault rifles, say
-- are attacked.
Addiction to cigarettes is reckoned to be the chief
avoidable cause of death in
the world. Alcohol deprives boozers of their lives and
their memories, and
ends the lives of all too many innocents who get smashed on
the roads by the
inebriated. Yet here the idea of dissuasion within the law
is broadly accepted.

Five years earlier, on April 2, 1988, The Economist
had
published a lead editorial
called, "Getting gangsters out of drugs". The editorial's
answer to drugs -- including
heroin, cocaine, marijuana, alcohol and tobacco -- was
"legalise, control, discourage".
It continued:

A sensible public policy might be to treat all three
-- alcohol, tobacco,
marijuana -- the same, with licensing, taxes and quality
control. . . .

. . Cocaine most needs to be brought under the aegis of
controlled and thus
legal suppliers, either by treating it like alcohol,
tobacco and marijuana . . . or
like heroin . . . depending how statistically awful it
proves to be.

. . . [T]he best policy towards existing heroin users
might be to bring them
within the law, allowing them to register for the right to
buy strictly limited
doses. Taxes should be high enough to discourage
consumption, but low
enough to put illicit dealers out of
business.

Mr. Justice Michael Kirby of the Court of Appeal of New
South
Wales has spoken
about the unquestioning acceptance of traditional "truths" about
drugs:

A recent documentary on Ceausescu's Romania
presented a parade of
chastened politicians, intellectuals and lawyers who
confessed that they had
never stopped to question the fantastic laws and policies
(not to say
personality cult) which the dictator inflicted on them.
They, at least, had the
excuse of the Securitate. The inhibitions upon questioning
apparently
universally accepted wisdoms are very great: this is so
even in less
authoritarian societies.

One of the great "truths" of modern times is said to be the
need for an
international "war against drugs".(28)

In 1989, Milton Friedman, Nobel laureate in economics,
addressed a letter pleading
for the end of prohibition to William Bennett, the former
American drug "czar":

In Oliver Cromwell's eloquent words, "I beseech you,
in the bowels of Christ,
think it possible you may be mistaken" about the course you
and President
Bush urge us to adopt to fight drugs. The path you propose
of more police,
more jails, use of the military in foreign countries, harsh
penalties for drug
users, and a whole panoply of repressive measures can only
make a bad
situation worse. The drug war cannot be won by those
tactics without
undermining the human liberty and individual freedom that
you and I cherish.

. . .

Drugs are a tragedy for addicts. But criminalizing their
use converts that
tragedy into a disaster for society, for users and
non-users alike. Our
experience with the prohibition of drugs is a replay of our
experience with the
prohibition of alcoholic beverages.

. . .

Postponing decriminalization will only make matters worse,
and make the
problem appear even more intractable.

. . .
Decriminalization would not prevent us from treating drugs
as we now treat
alcohol and tobacco: prohibiting sales of drugs to minors,
outlawing the
advertising of drugs and similar measures. Such measures
could be enforced,
while outright prohibition cannot be. Moreover, if even a
small fraction of
the money we now spend on trying to enforce drug
prohibition were devoted
to treatment and rehabilitation, in an atmosphere of
compassion not
punishment, the reduction in drug usage and in the harm
done to the users
could be dramatic.

. . . Every friend of freedom . . . must be as revolted as
I am by the prospect
of turning the United States into an armed camp, by the
vision of jails filled
with casual drug users and of an army of enforcers
empowered to invade the
liberty of citizens on slight evidence.(29)

Britain's The Independent newspaper had this to say in an
editorial entitled "Time to
License the Drug Trade":

A recent analysis by the Cato Institute in
Washington concluded that the
prohibition of drugs criminalised users, forced them into
contact with
professional criminals, tempted entrepreneurial young
people from
impoverished backgrounds into a lucrative criminal life,
encouraged gang
warfare, resulted in people taking impure mixtures in often
dangerously strong
doses by dangerous methods, and created heavy policing
costs. It is, in short,
not drug abuse itself which creates the most havoc, but the
crime resulting
from its prohibition. It is time for the Bush
administration, and other Western
governments, to contemplate some form of licensed sale of
drugs which
would deprive the pushers of their market while obliging
registered addicts to
take treatment. The key to beating the traffic is to
remove its prodigious
profitability and to deglamorize drug abuse by a heavy
programme of public
education.(30)

Lewis H. Lapham, editor of Harper's magazine, said
this:

The war on drugs is a political war, waged not
by scientists and doctors, but
by police officers and politicians. Under more fortunate
circumstances, the
prevalence of drugs in American society -- not only cocaine
and heroin and
marijuana but also alcohol and tobacco and sleeping pills
-- would properly
be addressed as a public health question. . . .

Given the folly and the expense of the war on drugs
(comparable to the folly
and expense of the war in Vietnam), I expect that the
United States eventually
will arrive at some method of decriminalizing the use of
all drugs. The
arguments in favour of decriminalization seem to me to be
irrefutable, as do
the lessons of experience taught by the failed attempt at
the prohibition of
alcohol.

But for the time being, as long as the question remains
primarily political, the
war on drugs serves the purposes of the more reactionary
interests within our
society (i.e., the defenders of the imagined innocence of a
nonexistent past)
and transfers the cost of the war to precisely those
individuals whom the
promoters of the war say they wish to protect.

. . .

[President] Bush offers the nation the chance to deny its
best principles, to
corrupt its magistrates and enrich its most vicious and
efficient criminals, to
repudiate its civil liberties and repent of the habits of
freedom. The deal is
shabby.(31)

The Religious Coalition for a Moral Drug Policy also decries
Prohibition. The
Coalition draws its membership from most major American
religious groups,
including Baptists, Jews, Roman Catholics and members of the
United Church:

One day we shall look back at this period of our
nation's history, in much the
same way that we now look back upon the days of prohibition
of alcohol.
Perhaps then, when the pain isn't quite as immediate and
when the gaping
wounds of our communities have healed, we will be able to
wonder how in
the world some people ever thought they could battle a
moral and spiritual
problem with guns and jails.

But until that day comes, as moral leaders, as clergy, as
human beings, we
will cry out for an end to the violence of the Drug War,
and a beginning of
the process of healing and liberation that our people so
desperately need.(32)

. . .

It is, to us, clearly immoral to continue a policy that
results in a violent and
corrupt society, to pursue a policy that pretends to uphold
our values even as
it destroys them.

Much of these grave consequences of the drug war spring
from the
ideological assumption that we must make everything we
disapprove of
illegal. We reject this notion, as it forgets the
difference between vice and
crime. Enforcing positive morality is our responsibility
as individuals, as
parents, and as clergy. To put the government in charge of
all morality is to
abdicate our individual responsibility, to weaken the moral
authority of our
religious institutions, and thus to fail in the execution
of our duties.

. . .
As all the great classic liberal thinkers argued the
primary moral obligation of
the government is to secure liberty, not to promote what is
called virtue at the
point of a gun.(33)

Harvard medical professor Lester Grinspoon sums up the
difficulty of having a
rational discussion about drugs:

I began to study marijuana in 1967. . . . I had not
yet learned that there is
something very special about illicit drugs. If they don't
always make the drug
user behave irrationally, they certainly cause many
non-users to behave that
way.(34)

Princeton University political scientist Ethan Nadelmann, a
member of the Princeton
Working Group on the Future of Drug Use and Alternatives to Drug
Prohibition,
states:

To legalize or not to legalize? That . . . is not
really the right question. The
appropriate question is much broader, and it is one that
incorporates the
"legalize or not" question with respect to particular
psychoactive drug
products: What, simply stated, are the best means to
regulate the production,
distribution, and consumption of the great variety of
psychoactive substances
available today and in the foreseeable future? For a
variety of reasons, the
efforts of myself and others to answer that highly complex
question have been
captured by the label of "legalization". The term itself
proved immensely
successful in drawing the attention of tens of millions in
the United States and
elsewhere to what was at once a radical sounding but quite
sensible critique
of American drug control policies. But it exacted a stiff
price with its
implication that the only alternative to current policies
was something
resembling current US policies with respect to alcohol and
tobacco. Few of
those publicly associated with legalization in fact
advocated such an
alternative, but the misimpression has stuck in the public
mind.

Legalization has always meant different things to different
people. From my
perspective, it has been first and foremost a critique of
American drug
prohibitionist policies which stresses the extent to which
most of what
Americans commonly identify as part and parcel of "the drug
problem" are in
fact the results of those policies. The failure of most
Americans to perceive
the extent and content of this causal relationship, and to
distinguish between
the problems that stem from the misuse of drugs per se and
those that stem
from drug prohibitionist policies, remains the greatest
single obstacle to any
significant change in American drug control policies. The
recognition of this
causal relationship does not, it should be stressed, lead
automatically to a
public policy recommendation that all of drug prohibition
be abandoned. But
it does suggest that alternative policies less dependent
upon prohibitionist
methods are likely to prove more
effective.(35)

Professor Jerome Skolnick of the University of California,
Berkeley, sums up the
limitations of law enforcement in dealing with drugs:

Working narcotic police understand the
limitations of law enforcement,
perhaps more than anyone. I asked an experienced New York
narcotics
officer, a trainer of undercover operatives, whom I
accompanied in 1990 to
observe the drug dealing scene in New York City's
Washington Heights (a
major marketing centre for crack cocaine), how effective
narcotics
enforcement was in interfering with cocaine trafficking.
His succinct and
evocative reply: "We're like a gnat biting on a horse's
ass."(36)

1. One need only think of Canada's history of powers of search
and seizure, the use of entrapment, informers, reverse onus
provisions, mandatory minimum penalties, rectal searches,
choke-holds, reporting requirements for large cash transactions
and drug testing to see where some of those liberties have been
cast aside in the name of battling drugs.

2. Patricia Erickson, "Recent Trends in Canadian Drug Policy:
The Decline and Resurgence of Prohibitionism", (1992), 121
Journal of the American Academy of Arts and Sciences 239 at
251.

3. And the folly does not end with the cost of imprisonment
(about $50,000 per year per person in a federal institution) and
the loss of those imprisoned from the work force and their
families. Take, for example, a drug bust reported in the Ottawa
Citizen, November 28, 1992. Twenty-one alleged drug dealers and
users were charged in a raid involving nearly 20 officers. The
average value of the drugs (mostly hashish, marijuana and LSD)
seized was $50. Add to that the cost of prosecuting (court
administrative costs, and the value of the time spent by the
police, prosecutors, social workers and judges, plus the possible
cost of legal aid for the accused. Most of these offenders, of
course, would not go to prison.)

4. Recent overdose deaths in Vancouver (about 175 in 1992) from
high-grade heroin point to the same conclusion -- that
prohibition increases the risk to drug users by encouraging the
distribution of substances of unknown potency.

5. Mr. Justice Kirby was speaking at an international conference
on legal issues arising from the Human Genome Project in Bilbao,
Spain, in May 1993.

6. New York Times, Saturday, April 17, 1993, p. 1.

7. Ibid.

8. As well, Professor Barry Beyerstein of Simon Fraser University
has been an outspoken critic of some drug "treatment" methods.

9. In the absence of a credible, independent national voice for
drug policy reform, several of Canada's leading independent drug
policy researchers formed the Canadian Foundation for Drug Policy
in early June 1993. The immediate concern of the Foundation was
to seek a reconsideration of Bill C-85, the Psychoactive
Substance Control Act then before Parliament.

10. (Ottawa: Ministry of Supply and Services 1991) at 28.

11. Ibid. at 14-15.

12. The Globe and Mail reported on December 7, 1992 that
marijuana had become the top cash crop in British Columbia.

13. Supra note 10 at 59.

14. Simon Fraser University criminologist Neil Boyd refers to the
role of Emily Murphy, an Edmonton magistrate and suffragette, in
spreading misinformation about marijuana in the early 1920's,
just before marijuana was outlawed. Judge Murphy wrote a series
of articles for Macleans magazine on drug issues. These were
later published as a book, The Black Candle. Neil Boyd,
High
Society: Legal and Illegal Drugs in Canada (Toronto: Key
Porter
Books, 1991) 10.

15. Drug Policy Foundation, The Bush Drug War Record: The
Real
Story of a $45 Billion Domestic War (Washington, D.C.: Drug
Policy Foundation, 1992) at 16.